On Sept. 16, the U.S. 9th Circuit Court of Appeals ruled 9-2 that a 1989 Redondo Beach, Calif. anti-solicitation ordinance aimed at day laborers was unconstitutional, because it "regulates significantly more speech than is necessary to achieve the city's purpose of improving traffic safety and traffic flow."
“It’s another affirmation that day laborers have the First Amendment right to seek work in public spaces,” said Chris Newman, legal programs director for the National Day Laborer Organizing Network (NDLON). “This is the law of the land to the western U.S.”
The decision, according to Newman, will impact dozens of anti-soliciting ordinances nationwide, including one created by the City of Phoenix in the ‘80s.
“Cities cannot make it illegal to look for work in public spaces on sidewalks,” he said.
Yet, Newman said he couldn’t comment at this time on what kind of impact this decision would have on a pending NDLON lawsuit against provisions in Arizona’s SB 1070 related to day laborers.
In response to a U.S Department of Justice lawsuit, U.S. District Court Judge Susan Bolton enjoined key provisions of SB 1070 –among them the portion that made it a state crime for a person to be undocumented. But, Bolton refused to block the enforcement of a part of SB 1070 aimed at day laborers.
SB 1070 does not apply to all forms of solicitation. Instead, it makes it a crime only for someone to get into a vehicle to do work elsewhere "if the motor vehicle blocks or impedes the normal movement of traffic."
Republican state Rep. John Kavanagh argues that Arizona’s SB 1070 day-laborer provision is different than the Redondo Beach ordinance, because the police has to clear an “extra hurdle” to arrest the day laborers.
“It’s not just them looking for work in or near a street,” he said. “In addition, traffic has to be impeded, and that’s not present in the other law,” he said, referring to the Redondo Beach ordinance.
Still, Kavanagh disagrees with the U.S. 9th District Court decision, arguing that “it’s not a free speech issue, but a public safety issue.”
Salvador Reza, an organizer from the PUENTE movement and founder of Phoenix’s only day labor center said it is unclear whether the Redondo Beach decision would change things in terms of SB 1070.
Reza said that in practice different police departments have been using the SB 1070 to pull over contractor vehicles, blocks away from the place where they picked up a day laborer because is easier to charge them after they get into the car.
“Things have gotten worse in the sense that police are pulling over more vehicles, for a small traffic violation to ask them for papers,” he said. “They feel more empowered to do that.”
In the recent federal court ruling, judges decided the restrictions were so broad they could be applied to "children selling lemonade on the sidewalk in front of their home, as well as to Girl Scouts selling cookies on the sidewalk" and even "protesters imploring donations to a disaster relief fund."
Giving a dissenting opinion, Judge Alex Kozinski wrote: "Nothing in the First Amendment prevents government from ensuring that sidewalks are reserved for walking rather than loitering; streets are used as thoroughfares rather than open air hiring halls; and bushes serve as adornment rather than latrines.”
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